Glanville v TCN Channel Nine Pty Ltd

Judgment 1HER HONOUR: David Glanville conducts the business of a modelling agent in Brisbane under the name "Boss Models". In March 2010, Mr Glanville was featured in a segment of the television programme "A Current Affair" on Channel Nine. Mr Glanville claims damages for defamation arising out of that broadcast. The programme undoubtedly conveyed defamatory meanings about Mr Glanville. The critical issue in the proceedings is whether the defamation is defensible on the grounds that what was said was substantially true. 2The trial of the action commenced before me last Monday. Mr Glanville, who is presently under cross-examination and has not been excused, has not attended Court since last Wednesday. Yesterday his solicitor sought an adjournment of the hearing "for at least two weeks". The solicitor had been unable to obtain instructions to make any such application before that point (see T265.26, T278.19 and T300.32). 3The application is opposed by the defendants, who submit that the proceedings should now be finally determined in the plaintiff's absence or else dismissed or stayed, either permanently or on conditions as to costs. 4I have determined that the adjournment sought by the plaintiff should be refused and that the proceedings should be permanently stayed. My reasons for reaching those conclusions are as follows.

Circumstances in which the adjournment is sought 5As already noted, the hearing of the proceedings commenced on Monday, 19 August 2013. The estimated hearing time was three weeks. There was at that stage no solicitor on the record for the plaintiff. At the outset of the hearing Mr Stewart, solicitor, announced his appearance on behalf of Mr Glanville. However, Mr Stewart's instructions were limited to appearing on a notice of motion filed on 9 August 2013 (seeking further answers to interrogatories) and an oral application for an adjournment of the hearing. 6The application for an adjournment was supported by an affidavit sworn by Mr Glanville in which he stated that he was under "significant distress" as a result of the defendants' failure to provide proper answers to his interrogatories. He further stated that this had significantly increased his difficulties in preparing for trial. 7The affidavit annexed a letter from a psychiatrist, Dr Ray Cash. Dr Cash has treated Mr Glanville periodically over the past several years but not with sufficient regularity in recent times to feel comfortable describing his care of the plaintiff as a formal treatment plan. The letter was dated 8 August 2013 and stated that Dr Cash had received a telephone call from Mr Glanville the previous evening. Dr Cash described Mr Glanville as being in an agitated and highly anxious state and said that he was "talking on and on, one thought rapidly leading to another, but in a somewhat disconnected way, about new matters he had to prepare for his upcoming court case". The letter stated that, in such an agitated state, Mr Glanville finds it difficult to focus on what he is doing and that he was not in a mental state where he would be able sensibly to prepare documents for a court case. Dr Cash stated that Mr Glanville would need time for his anxiety to settle before he could work on the documents he needed to. 8I should record that some of the "documents" Mr Glanville was then required to prepare (but had not) were witness statements which Garling J ordered be served in advance of the trial. Since it is a common law trial, I was satisfied that it could proceed without the benefit of such statements. 9I rejected the application for an adjournment, for the reasons stated in my judgment published the following day: Glanville v TCN Channel Nine Pty Ltd [2013] NSWSC 1143 at [29] to [36]. 10Following my refusal of the adjournment application, Mr Stewart stated that he was not instructed to appear in the trial. However, he indicated a desire to remain at the bar table. I allowed Mr Stewart to remain to assist the plaintiff, noting that he was not at that stage appearing as the plaintiff's legal representative. The defendants did not oppose that course. The following morning, Mr Stewart announced that he had been retained to appear at the trial. He filed a notice of appearance in Court. 11In the meantime, Mr Glanville had commenced his evidence in chief shortly after the luncheon adjournment on the first day of the trial. When Mr Stewart came onto the record as his solicitor the following morning, I granted a short adjournment (until 11.30 am) for them to confer as to any further evidence-in-chief Mr Glanville may wish to give (T84 to 85). Mr Glanville gave some further evidence-in-chief from 11.30 am. His cross-examination commenced before the luncheon adjournment that day. The cross examination continued for the rest of that day and all of the following day. 12When the hearing of the proceedings was due to resume on Thursday, 22 August 2013, Mr Glanville did not attend court. Mr Stewart explained (at T265): I received a telephone call this morning. The plaintiff, Mr Glanville, was in a state of distress. He was incoherent and couldn't string a sentence together let alone appear. He said he was going to call an ambulance. He was in his hotel room. He had had one hour's sleep and I said to him "get whatever medical attention you require, I will have to inform the Court". 13I stood the proceedings down until midday to allow Mr Stewart to collect evidence as to his client's medical condition (T267.17) but he was unable to obtain a medical certificate within that time frame (T273.5). Mr Stewart informed me at that stage that the plaintiff was in St Vincent's Hospital and was waiting to be examined. I stood the proceedings over until the following day. 14On Friday, 23 August 2013, Mr Stewart stated that Mr Glanville was in the psychiatric unit at St Vincent's Hospital. Mr Stewart had been unable to speak to him and unable to obtain a medical certificate. He had spoken to a nurse, who said that the doctors would not be able to speak to Mr Stewart until they had further assessed Mr Glanville that day. I directed the plaintiff by 5.30 pm that day to provide to the solicitors for the defendant and to my associate a copy of a medical certificate from a duly qualified medical practitioner stating the plaintiff's present medical condition and his fitness or otherwise to proceed with the hearing. I stood the proceedings over to Monday, 26 August 2013. 15Mr Stewart wrote to the defendants and my associate that afternoon providing a medical certificate and stating: I confirm that Mr Glanville will not be appearing on Monday. He will be attending his usual psychiatrist Dr Cash in Brisbane. I have spoken with him and he advised he will not be available on Monday but can make some time on Tuesday for a telephone conference. 16The medical certificate was provided under the name of St Vincent's Hospital and was a standard form document. It stated only that the plaintiff had been an inpatient at the hospital from 22 to 23 August; that he was treated for "adjustment disorder" and that he was "unfit for work/school/usual activities from 22/8/13 to 26/8/13". It was signed by a psychiatric registrar. On Sunday 25 August 2013, I informed the parties by email that I did not regard the medical certificate as providing sufficient detail to establish that the hearing of the proceedings should not continue the following day. 17On Monday 26 August 2013 Mr Glanville still did not attend the hearing. Mr Stewart confirmed that Mr Glanville had been discharged from St Vincent's Hospital on Friday 23 August 2013 and was going to see Dr Cash that day (Monday). No sworn evidence was produced to support the contention that Mr Glanville was unable by reason of his medical condition to attend as required for the completion of his cross-examination. In the circumstances, I raised an issue as to why, absent such evidence, the hearing of the proceedings should not continue in Mr Glanville's absence. I directed him to provide evidence of his medical condition by 5.00 pm that day, warning Mr Stewart that, unless there was sworn evidence stating what constraints the plaintiff was labouring under and why he could not attend for the conclusion of his cross-examination the following day, the hearing of the proceedings may be concluded in Mr Glanville's absence: see Glanville v TCN Channel Nine Pty Ltd (No 2) [2013] NSWSC 1179. 18When the hearing resumed yesterday, Tuesday 27 August 2013, Mr Stewart called sworn evidence from Dr Cash in Brisbane (by telephone). Dr Cash expressed his opinion, based on his examination of Mr Glanville the previous day, that he was mostly suffering from extreme anxiety. He gave the following evidence (at T320): Q. And what has brought on that anxiety? A. Well the most immediate cause is the court case and his feeling, his need to stay up all night and prepare for giving his evidence and prepare questions for you to ask him and to make sure that he puts his case correctly. Q. As a result of this anxiety, him staying up, what effect has that had on him mentally and physically? A. Well it caused him to completely decompensate. He hadn't slept or he had slept about three hours I think in the last three days, if you put it all together, something like that. He hadn't showered. By the time he rang an ambulance from the hotel he was kind of curled up in a foetal position. When one of the hotel staff said "can I open a window" he was holding the hotel staff's hand according to Mr Glanville, you know, because he was worried he might impulsively jump out the window. He is not suicidal in that sense but he was getting this kind of thought that just stop, just put it all to an end by jumping out of the window. That is all much improved now since he has been back in Brisbane over the weekend and has now slept. He has spent most of the weekend asleep. Q. In your opinion what is his ability to give evidence and continue with this trial in his current condition? A. Right now I don't think he could do it at all. When I had him in my office yesterday for about half an hour, which is all I could do, there were lots of long silences, lots of just sitting there with his head in his hands. When he finally answered it was sensible and every now and again he would start to talk and then he would start to sort of ramble on, mostly on topic but I had to work pretty hard to get him to answer the questions that I wanted him to answer rather than just let him free wheel off on his own. So I got the sense he wouldn't really be up to any kind of intensive crossexamination right now. Q. When do you think his condition will improve? A. I think he is already lots, lots better than he was when he was in Sydney when he went off to St Vincents. So I think you know within a week or two weeks he will probably be as good as he is going to be. 19Dr Cash had had access to the clinical notes from St Vincent's Hospital which stated, by way of summary diagnosis: Suicidality in context of a court case, which has activated longterm personality vulnerabilities especially low selfesteem and selfloathing. 20On the strength of that evidence, Mr Stewart sought an adjournment of the proceedings for at least two weeks. 21As already noted, the application is opposed by the defendants. Mr McClintock SC, who appears with Mr Richardson for the defendants, submitted that the proceedings should now be determined in one of the following three ways: (a)by dismissing the proceedings for the plaintiff's default in not attending court as required whilst under cross-examination; (b)by an order under s 67 of the Act staying the proceedings permanently or on conditions as to costs; (c)by refusing the adjournment, concluding the hearing and proceeding to determine the action on its merits. 22Mr McClintock further submitted that, in the event that the Court were minded to grant the adjournment, it should be subject to the following conditions: (a)that the plaintiff pay the costs thrown away by his non-appearance over the past four days together with the defendants' additional costs of having to prepare for the adjourned hearing; (b)that the proceedings not be re-listed for hearing until those costs are paid and the plaintiff's solicitor has filed and served a certificate from a psychiatrist that the plaintiff is fit to resume his cross-examination and to give adequate instructions to his legal representative.